That’s fueled some grumbling about whether that’s too much for one senator to take on, though Durbin currently has no challenger for the Judiciary Committee post. The next Democrat in line, Sen. Sheldon Whitehouse of Rhode Island, said Tuesday he looks forward to the question of succession being decided by the caucus, adding, “I will abide by the caucus’s decision.”
Durbin is popular in the caucus and may already have the job locked down because of his seniority. But some prominent progressives are pushing for Whitehouse to get the job due to his reputation as a political brawler — the latest instance of the party fighting over its future in the post-Trump era.
“Nothing personal against Durbin, but with Feinstein stepping down, I think there’s a need for some new blood and new style and approaches. Sen. Whitehouse could breathe some new energy into the committee,” said Faiz Shakir, who managed Bernie Sanders’ presidential campaign and was a top aide for former Democratic Leader Harry Reid (D-Nev.).
Adam Green, co-founder of the Progressive Change Campaign Committee, described Whitehouse as “one of the most strategic and savvy fighters in the Democratic caucus” and said he assumes Durbin “would be thrilled for someone as good as Senator Whitehouse to play a leading role in Judiciary.”
Brian Fallon, who runs the progressive group Demand Justice, also praised Whitehouse after Feinstein announced her plans. Fallon had called for Feinstein to go after her conciliatory handling of Amy Coney Barrett’s Supreme Court confirmation hearings.
No Judiciary Committee Democrats commented for this story, a sign of the issue’s sensitivity. Senate Minority Leader Chuck Schumer (D-N.Y.), who once served on the Judiciary Committee, has not publicly discussed the slot beyond praising Feinstein.
It’s difficult for Senate Democrats to negotiate the matter during the Thanksgiving recess. But there is likely to be a conversation among lawmakers about whether the party’s No. 2 should also lead a crucial committee.
“There needs to be a discussion,” said Sen. Patty Murray (D-Wash.), the No. 3 Senate Democrat, who is also the ranking member on the Senate HELP Committee and an Appropriations subcommittee. “It’s clear we have a lot of great talent in our caucus and voices that need to be heard and used in leadership so we can be as effective as possible.”
Caucus rules don’t prohibit Democrats from holding the whip job and ranking member positions, and several Democrats have done so over the years.
Some progressive groups are staying out of it. Nan Aron, president of the liberal group Alliance for Justice, said she’d support either Durbin or Whitehouse, describing them both as “stalwarts.” Meagan Hatcher-Mays, director of democracy policy for Indivisible, didn’t take sides but said Feinstein’s successor has a tall task ahead.
“What cannot happen is a return to the bad old days when Democrats played by an outdated set of rules that were easily exploited by Republicans,” Hatcher-Mays said.
Durbin is one of the most visible Democrats on the issues overseen by the committee, including immigration and criminal justice reform. Vanita Gupta, a top civil rights official under President Barack Obama who now runs The Leadership Conference on Civil and Human Rights, praised Durbin’s plans to run for the job and called him “a champion for civil and human rights.”
Robert Creamer, a progressive strategist at Democracy Partners, also penned an article in DailyKos pushing for Durbin to get the top slot. He argued the Illinois Democrat’s “close relationship with key progressive groups goes a long way to equip him for the battles ahead.”
Several aides said Durbin would not have put out a statement on Monday night announcing his pursuit of the job if he didn’t already have the support to win. After all, he is the party’s chief vote counter.
“I have served on the committee for 22 years, and I am its most senior member who does not currently serve atop another Senate Committee,” Durbin said shortly after Feinstein’s announcement. “We have to roll up our sleeves and get to work on undoing the damage of the last four years and protecting fundamental civil and human rights.”
Durbin is an affable and well-liked member of the Democratic Caucus with deep relationships with Republicans — a valuable commodity in divided government. He’s also one of the chattiest senators in the Capitol, often engaging with reporters at length on issues of the day and pushing the party’s message in his plainspoken style. After serving in both the House and Senate, he knows every nook and cranny of the Capitol; sometimes he leaves behind his security detail as he roams the halls.
Durbin boasts a long liberal record, but Whitehouse is a more pugnacious combatant in the Judiciary Committee. A former Rhode Island attorney general, Whitehouse is a close Schumer ally and has made attacks on dark money in politics his signature issue. If Whitehouse takes the top job, it would increase the likelihood that Democrats embrace some of the GOP’s hard-line tactics. Democrats still seethe over the GOP blocking a Supreme Court vacancy under Obama and rushing through Barrett days before a presidential election.
Republicans have “set a very clear precedent of: ‘If we can, we will,’” Whitehouse said in an interview this month. “If you live by the rule of: ‘If we can, we will,’ then you’ve lost your standing to come back later on if you’re ever not in the majority and say to another majority: ‘Yeah, I know you can, but you shouldn’t.’”
Durbin or Whitehouse could become chairman if Democrats win two Georgia Senate runoffs on Jan. 5. Even in the minority, the top Judiciary Democrat will have to work closely with incoming Chairman Chuck Grassley (R-Iowa) to process Biden’s judicial nominees and try to reverse Senate Majority Leader Mitch McConnell’s outsize stamp on the courts.
Durbin has struck deals with Grassley before, most recently in 2018 on a new criminal justice reform law. Taking the top job on the Judiciary Committee would also give Durbin his biggest platform yet to pursue immigration reform, a longtime goal.
As whip, Durbin already has a spacious office on the third floor of the Capitol with sweeping views of Washington, plus a security detail. He’s held the post since 2005, a stunningly long run.
That’s partly because Democrats treat seniority differently than Senate Republicans, who cap leadership positions, chairmanships and ranking member roles at three full terms — with an exception for party leader. When Sen. John Thune (R-S.D.) won the whip job in 2019, he gave up his chairmanship of the Senate Commerce Committee.
Whether Democrats have any appetite to reform such rules is not clear. And those decisions, including potentially for committee posts, may be delayed until January pending the Georgia elections.
Durbin has faced uncertainty before. In 2016, Murray declined to rule out a run for whip until right before the party’s leadership elections. And Schumer and Durbin were involved in a lengthy standoff over whether they’d struck an agreement to support each other in the caucuses’ top two jobs. While Durbin fell short to Schumer in becoming party leader, he’s held onto the No. 2 spot throughout.
Ultimately, Democrats may decide living through the tension of a committee fight as Biden gets ready to take the White House isn’t worth it. Some outside groups may never be satisfied anyway. Sunrise Movement on Tuesday reiterated its call for Feinstein to resign from the Senate, not just step down from her Judiciary Committee post.
Evan Weber, the group’s political director, didn’t outright endorse an alternative to Durbin, but called on “Chuck Schumer and Senate Democrats to end the practice of seniority determining Committee leadership.”